Cellular Telecommunications Policy and Regulation Update

The City is working on updates to its telecommunications policies and regulations to address new and emerging technologies and to address the developing condition of state and federal law. This webpage provides a summary of information that may be useful to persons interested in this topic. The information on this webpage may be updated from time to time.

Please note that given the complexity of this topic this webpage is intended to provide only general information. The City encourages readers of this webpage to conduct their own independent research for additional information and/or seek legal or other advice from an attorney or consultant of their choosing.

New and Emerging Technology

Historically, cellular telecommunications have utilized large antenna structures (cell sites). These cell sites are often located on existing telecommunications infrastructure, major powerlines, or on monopoles designed to blend into the surrounding environment, such as trees and flag poles. These cell sites have operated on older cellular technology (e.g., 2G, 3G) as well as the current 4G/LTE system that many cell phones use today.

The cellular telecommunications industry is beginning to deploy new forms of technology in a “small cell” format. These new systems are much smaller than traditional cell sites and may be installed on light poles, traffic signals, or small power/telephone poles. These small cells can operate with either the current 4G/LTE technology, or the newer 5G technology, which is expected to be introduced to the market in the near future.

Wireless carriers contend that additional small cell facilities are necessary to meet the demand for wireless data usage from a population with an increasing number of devices dependent upon their service.

Updating Local Policies and Regulations

On September 11, 2019, the City Council adopted an ordinance amending Chapter 23 of the Elk Grove Municipal Code (Zoning Code) to facilitate the deployment of Small Cell Telecommunications Facilities throughout the City. Amongst other changes, the amendments to the Zoning Code created two new land use categories, “Wireless Communications Facilites”, and “Wireless Communication Facilities, Small Cell.” Additionally, the Zoning Code Amendments modified Table 23.27 of the Zoning Code (Allowed Uses) to allow small cell facilites in industrial zoning districts by right; in agricultural-residenital, residential, and public/quasi public districts with the issuance of a Minor Conditional Use Permit (MUP); and in commercial, mixed-use, and office districts with an administrative permit when consistent with a City Council Approved Master Licensing Agreement (MLA).

Additionally the code amendments placed the following restrictions on small cell facilities located in residential zoning districts:

No small cell wireless communication facility shall be placed within five hundred (500' 0") feet of another small cell wireless communications facility.

No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling.

The cumulative total of all associated equipment from all wireless communications providers, including antennas, for a single facility or property shall not exceed twenty-eight cubic feet (28 ft3) in volume.

Though the Zoning Code has been amended to facilitate the deployment of small cell antennas throughout the City, the City's discretion remains limited by federal law. For instance, under federal law, the City may not regulate telecommunications facilities in a manner that materially inhibits personal wireless service. Additionally, under federal law, the City may not regulate telecommunications facilities on basis of the environmental effects of radio frequency emissions of the facilities, but such facilities must comply with Federal Communications Commission (FCC) emissions standards.

New Federal Requirements

Federal law provides extensive regulation on the local implementation of cellular telecommunication. Much of this direction comes from laws enacted by Congress and implemented by the FCC. In September 2018, the FCC issued a detailed order on small cell deployment regulation intended to streamline the roll-out of 5G services nationwide. This impacts the scope of local and state regulation in California and other states. This order is referred to as the 5G deployment order. The FCC order became effective January 14, 2019.

Lawsuits Filed Against the FCC

Multiple lawsuits have been filed in federal court against the FCC, including in the Ninth Circuit Court of Appeals, which covers the State of California. The lawsuits involve over twenty municipalities, and the lead plaintiffs include the cities of San José and Huntington Beach in California, and Seattle in Washington. Each suit argues that the FCC's order improperly overrides the municipality's ability to manage how phone companies use public property. San José also argues that the FCC order will force taxpayers to subsidize industry access to publicly-owned infrastructure without an obligation to serve rural and low-income communities. The lawsuits remain pending and the outcome of the suits remains uncertain.

California Supreme Court

On April 4, 2019, the California Supreme Court decided the case of T-Mobile West LLC. v. City and County of San Francisco, et. al., Case No. S238001. The Court ruled that cities in California retain certain regulatory authority over the placement of cellular telecommunications facilities in public rights of way, including aesthetic concerns, under the California Constitution and California state law. The case was a state court decision, and it did not address the scope of telecommunications regulation under federal law. A copy of the decision can be found at the following link: https://www.courts.ca.gov/opinions/documents/S238001.PDF

State and National Legislation Regarding This Issue

CA State Legislative Activity

In February 2017, California State Senator Ben Hueso introduced SB 649. The bill proposed streamlining the permitting process for installing small cell infrastructure by imposing a state-mandated local program. The City of Elk Grove submitted a notice of opposition to the bill in April 2017. The City's primary reason for opposing the bill was due to the fact that it would have improperly removed much of the local authority cities have over regulations of telecommunications facilities. The bill was passed by both houses of the state legislature, but it was vetoed by Governor Jerry Brown in October 2017.

U.S. Congress

In January 2019, Rep. Anna Eshoo (D-CA) introduced HR 530, the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019. The purpose of this legislation is to overturn Federal Communications Commission (FCC) regulations limiting the ability of local governments to regulate the deployment of 5G wireless infrastructure.

On June 3, 2019 Senators John Thune, R-SD, and Brian Schatz, D-HI, reintroduced the STREAMLINE Small Cell Deployment Act (S. 1699), which would set requirements for cities during the approval process of installing infrastructure for 5G. The bill would enshrine in statute many of the preemptions created by the September 2018 FCC order limiting local authority over small cell wireless deployments in public rights of way. S. 1699 would also impose a “deemed granted” provision, in which wireless siting applications would automatically be approved if a local government missed application review deadlines. This same legislation was introduced by Sens. Thune and Schatz in the previous Congress.
On June 27, Senator Dianne Feinstein (D-CA) introduced S. 2012, the “Restoring Local Control Over Public Infrastructure Act” which gives state and local government control over how wireless carriers deploy 5G equipment on phone and utility poles. Similar to legislation introduced in the House of Representatives earlier this year (H.R. 530), S. 2012 would overturn the recent FCC rules and restore local control concerning the placement of 5G equipment on phone and utility poles. It would also overturn the FCC’s 60- to 90-day limits for local governments to review applications to use public infrastructure before those applications are automatically approved.

Elk Grove Updates

Special Meeting

The City Council held a special study session on the topic of cellular telecommunications on November 28, 2018 where both proponents and opponents of the proposed small cell wireless technology were provided the opportunity to present information and comment on possible regulations. At the conclusion of the meeting, the City Council expressed some concern with the new small cell technology, particularly with installations in residential areas, including near parks and schools. The City Council directed staff to continue to process the application from AT&T and work with them to develop regulations that would consider the concerns expressed by residents and also be consistent with FCC rules.

City staff is currently processing a Master License Agreement between the City of Elk Grove and Verizon Wireless. This Agreement would allow Verizon to deploy small cell wireless communications facilities on public infrastructure throughout the City. The proposed Agreement with Verizon Wireless would not require any additional amendments to the Zoning Code. This Agreement will be heard by the City Council on December 11, 2019.

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